G. Transfer


		G. Transfer

25 U.S.C. § 1911(b)

The parents, Indian custodian, or Indian child’s tribe may petition to transfer jurisdiction of proceedings for foster care placement or termination of parental rights.

Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67584, 67590 C.1

The request may be made orally, but if so made, the request shall be reduced to writing by the court and made part of the record.

25 U.S.C. § 1911(b)

The court shall transfer the proceeding in the absence of good cause to the contrary and absent objection by either parent.

C.R.S § 19-1-126(4)(b)
People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 1994).

Once transfer is requested, the burden of proof is on the party opposing the transfer and that party must prove good cause by clear and convincing evidence.

Reference

The determination of good cause is within the trial court’s discretion and is necessarily made on a case-by-case basis.

The court may find good cause to deny a transfer if:

C.R.S § 19-1-126(4)(a)(I)

The child’s tribe does not have a tribal court;

C.R.S § 19-1-126(4)(a)(II)(A)

Either of the Indian child’s parents objects to the transfer;

C.R.S § 19-1-126(4)(a)(II)(B)
Reference

The proceeding was at an advanced stage when the petition to transfer was filed and the petitioning party did not promptly file the petition after receiving notice of the hearing;

Reference

The Indian child is over twelve years of age and objects to the transfer;

Reference

The evidence necessary to decide the case could not adequately be presented in the tribal court without undue hardship to the parties or the witnesses;

Reference

The parents of the child over five years of age are not available and the child has had little or no contact with child’s tribe or members of the child’s tribe.

Guidelines for State Court: Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,591 C.3(c)

The court may not conclude good cause to deny the transfer exists based on the socioeconomic conditions of the tribe or the perceived inadequacies of tribal or BIA social services or judicial systems.

People in Interest of A.T.W.S., 899 P.2d 223 (Colo. App. 1994)

Timeliness of the motion to transfer must be decided on a case-by-case basis, and is designed to encourage the prompt exercise of the right to petition for transfer to avoid unnecessary delays.

People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 1994)

Examples of ruling on timeliness:

One-year delay in bringing the motion not untimely, where no permanency planning hearings had been conducted; therefore, the proceedings were not at an advanced stage;

Reference

Delays of sixteen and twenty-four months were considered excessive;

People in Interest of A.T.W.S., 899 P.2d 223 (Colo. App. 1994)

Waiting over forty months was too late to bring the transfer motion, particularly because the tribe waited to transfer until the motion to terminate had been filed;

Reference

Waiting until the case is on appeal is untimely.

People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 1994)

If the parties agree, the court may conduct the transfer proceedings without additional hearings, if the parties have participated in preliminary arguments and have briefed the issue.

25 U.S.C. § 1911(b)
People in Interest of A.N.W., 976 P.2d 365 (Colo. App. 1999)

The tribal court may decline the transfer. Even if the request to transfer is denied, the tribe still has the right to intervene.

25 U.S.C. § 1911(c)